President. In this conversation, he emphasized the need to fact check dubious claims of election fraud.[176] Herschmann told Eastman that "someone better make sure" that the allegations Eastman provided to members of Congress were accurate before they objected to the certification of the vote the next day.[177] "[N]othing should come out of someone's mouth that [isn't] independently verified and [ ] reliable."[178]
At the End of the Morning Meeting, Eastman Concedes to Pence's Counsel That His Theory Has No Historical Support. Jacob then had his own "Socratic" debate with Eastman over the legal merits of his position. According to Jacob, Eastman conceded much ground by the end of the session. Eastman "all but admitted that it [his plan] didn't work."[179]
For example, Eastman had previously claimed to have found historical support in the actions of John Adams and Thomas Jefferson, who both presided over the counting of electoral votes when they were Vice President. Not so. Jacob told the Select Committee that Eastman conceded in private that the cases of Jefferson and Adams did not serve "as examples for the proposition that he was trying to support of a Vice Presidential assertion of authority to decide disputes[,] because no dispute was raised in either case during the joint session." Jacob added: "And, moreover, there was no [question] as to the outcomes in those States."[180]
Eastman conceded that there was no historical support for the role that he and President Trump were pushing Vice President Pence to play. No Vice President—before or after the adoption of the Electoral Count Act—had ever exercised such authority. This included then-Vice President Richard Nixon's handling of the electoral votes of Hawaii following the 1960 election. Though Eastman and other Trump lawyers used this Hawaii example to justify the theory that the Vice President could unilaterally choose which electors to count, Eastman admitted to Jacob that Vice President Nixon had not in fact done what Eastman was recommending Vice President Pence do.[181]
Eastman also admitted that he would not grant the expansive powers he advocated for Vice President Pence to any other Vice President. Eastman did not think that Vice President Kamala Harris should have such power in 2025, nor did he think that Vice President Al Gore should have had such authority in 2001.[182] He also acknowledged that his theory would lose 9-0 at the Supreme Court.[183]
According to Jacob, Eastman "acknowledged by the end that, first of all, no reasonable person would actually want that clause [of the 12th Amendment] read that way because if indeed it did mean that the Vice President
